A few weeks back, the Supreme Court quietly declined to hear Fitisimanu v. United States, leaving in place one of the most explicitly racist jurisprudential regimes in American law.
Fitisimanu was a direct challenge to the Insular Cases, a set of Supreme Court cases dating back to 1901, following the Spanish-American War, that established the scope of the constitutional rights held by citizens of America’s newly acquired territories in Puerto Rico, Guam, and the Philippines. The Court’s rulings firmly established the residents of those territories as secondary citizens, with fewer constitutional protections than citizens of established states. While residents would receive certain fundamental rights—the Court did not clarify which—the rest were to be dictated by Congress as it saw fit.
Unlike the mostly-veiled racism of modern Supreme Court cases, the racism of the Insular Cases was explicit. Moreover, it was fundamental to the holding of the cases. One case, Downes v. Bidwell, found that “the administration of government and justice according to Anglo-Saxon principles may for a time be impossible” in territories inhabited by “alien races.” Another referred to residents of Puerto Rico as members of “savage tribes.”
It was on that basis—the idea that different races required different governing structures—that the Court denied the residents of the annexed territories the full protection of the Constitution. In other words, this was not the sort of incidental racist language that might make its way into other Supreme Court decisions from the era. The belief that the residents of these territories should be treated differently because they are of a different race was central to the Court’s reasoning. The Philippines became an independent nation in the wake of World War II, but the Insular Cases form the basis for the legal regime that governs the United States’ relationships with Puerto Rico and Guam to this day.
The legal apartheid established by the Insular Cases left the citizens of the newly-annexed territories with a patchwork of rights. While Congress has passed laws making them U.S. citizens (meaning they can, for example, travel and work freely throughout the country), they are effectively shut out of the federal democratic process: They cannot directly participate in presidential elections, and have only symbolic representation in Congress.